The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
MEMORANDUM OPINION AND ORDER
The defendant, Richard Daryl Bailey, is charged with one count of being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1). This criminal case is before the Court on the defendant's Amended Motion for Certification Order [Docs. 87, 102], Amended Motion to Dismiss [Docs. 98, 100], and Objections to Report and Recommendation [Doc. 108]. An evidentiary hearing on the Amended Motion for Certification Order and Amended Motion to Dismiss was held on Thursday, May 17, 2007. The government was represented by Assistant United States Attorneys Tracy L. Stone and Steven H. Cook. Attorneys James A. H. Bell and Richard L. Holcomb represented defendant Richard Daryl Bailey ("Defendant"), who was also present. The Court took the Amended Motion for Certification Order and Amended Motion to Dismiss under advisement at the conclusion of the hearing.
As an initial matter, the Court will set forth the facts established at the May 17, 2007, evidentiary hearing. The Court notes that Defendant initially presented argument before offering evidence, but, for the sake of clarity, the Court will first establish the facts and will then address the arguments of both parties.
A. Testimony of Teresa Keck
Defendant called Teresa Keck, a deputy clerk for the Claiborne County Circuit Court, as his first witness. Ms. Keck testified she had been with the Clerk's Office since December, 2006, that her responsibilities included working with the minute books for Claiborne County Court, and that the Clerk's office was under an obligation to make minute entries within six months of court activity. Ms. Keck stated that she had searched the minute books in the Claiborne County Court Clerk's Office and had been unable to find a record of conviction for Defendant relating to case number 9768. Certified copies of the files from the Claiborne County Court Clerk's Office relating to Defendant were entered into evidence as Defendant's Collective Exhibit One, while a copy of the subpoena duces tecum served on Ms. Keck was entered as Defendant's Exhibit Two to serve as a summary of the documents Ms. Keck had been asked to provide.
Ms. Keck said that Defendant's Collective Exhibit One included copies of the indexes and minute book entries believed to relate to Defendant. Ms. Keck testified that the index for Book 48, which covered the period of August, 1985, to January, 1987, indicated that pages 801, 802, 803, 804, and 924 of Book 48 contained minute entries relating to Defendant. Ms. Keck stated that Pages 801 and 802 contained the indictment in case number 9768, pages 803 and 804 contained a "no true bill" indictment in case number 9769, and page 924 contained an arraignment order in case number 9768. Ms. Keck then testified that the index of Book 49, covering the period of February, 1987, through March, 1998, contained a blacked out name, but Defendant's name was not visible in the index. Ms. Keck further testified that a page by page search of Book 49 revealed one minute entry, on page352, related to Defendant, an order of continuance in case number 9768 continuing the trial to December 7, 1987. Ms. Keck also stated that a review of Books 50 through 66, 68, and 70 through 75, as well as a review of items to be entered into the most recent minute books, revealed no records related to Defendant. Ms. Keck said that Book 68 contained a minute entry relating to Defendant's former bonding company. Ms. Keck further said that the index of Book 69 indicated that page 768 contained a minute entry related to Defendant's former bonding company, but actually contained an order in an unrelated case. Ms. Keck testified that there was no entry for the 2004 "unexpungement" in any of the minute books, nor was it included in the file of documents yet to be entered into the minute books.
On cross-examination, Ms. Keck testified that Defendant's Collective Exhibit One included a copy of the entire file of the Claiborne County Clerk's Office in case number 9768, but that she did not see a copy of a judgment of conviction in that case. Ms. Keck was then shown a copy of a document which Ms. Keck identified as a certified copy of a judgment in case number 9768 dated November 9, 2004. Ms. Keck again looked through her copy of the file in case number 9768 but was unable to locate a copy of the November 9, 2004, judgment in her file. The government's certified copy of the judgment was entered into evidence as Government's Exhibit One. Ms. Keck testified that her copy of the file in case number 9768 did contain a certified copy of a transcript from the proceeding where Defendant entered a guilty plea in case number 9768. Ms. Keck stated that the file also contained a certified copy of a transcript from the Defendant's sentencing and probation hearing in case number 9768 which indicated that Defendant was sentenced to three years probation.
Ms. Keck next testified that her copy of the file in case number 9768 did contain a certified copy of the 1998 expungement order which listed six case numbers to be expunged, including case number 9768. Ms. Keck stated that her copy of the file also contained a certified copy of the Motion to Re-Establish Record of Conviction Erroneously Expunged, filed by a deputy district attorney general on April 14, 2004, in case number 9768. Ms. Keck said that her copy of the file also contained a certified copy of an order directing that the April 14, 2004, motion be served on Defendant and that Defendant file a written answer within thirty days. Ms. Keck testified that the return indicated that a copy of the April 14, 2004, motion had been served on Defendant. Ms. Keck stated that her copy of the file also contained a certified copy of an Order filed pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure purporting to set aside the erroneous expungement.
Ms. Keck then testified that Defendant's Collective Exhibit One included a copy of the entire file of the Claiborne County Clerk's Office in case number 12048, relating to Defendant's former bonding company. Ms. Keck stated that the file contained a certified copy of a 2002 petition to grant bonding privileges to Defendant, as well as a certified copy of the April 15, 2002, Order granting the petition. Ms. Keck went on to testify that the file also contained page one of a Petition to Suspend Bonding Privileges, but did not contain the second page of that document. The government then asked Ms. Keck to compare a certified copy of the Petition to Suspend Bonding Privileges, dated April 14, 2004, to the one page contained in the copy of the file for case number 12048. Ms. Keck testified that the single page contained in her file matched the first page of the certified copy provided by the government, but that she could not find a copy of the second page in her file. The government filed its certified copy of the Petition to Suspend Bonding Privileges as Government's Exhibit Two.
Ms. Keck next testified that her file in case number 12048 also contained a certified copy of an order dated April 14, 2004, directing that the April 14, 2004, petition be served on Defendant. Ms. Keck stated that the file also contained a certified copy of a return indicating that Defendant had been served with a copy of the April 14, 2004, petition. Ms. Keck testified that her file also contained a certified copy of a three page Answer to Petition to Suspend Bonding Privileges. Ms. Keck testified that the answer indicated that Defendant admitted to having been convicted of a felony in case number 9768. Ms. Keck then stated that her file also contained a copy*fn1 of an order dated June 14, 2004, which suspended the bonding privileges of Defendant and of Darryl Bailey and Son Bonding Company.
Ms. Keck next testified that she did not know whether other minute entries relating to case number 9768 ever existed, instead stating that she was aware of only the entries currently in the minute books. Ms. Keck was then asked to examine Government's Exhibit One. Ms. Keck testified that there was a hand-written notation of "MB-49, P-236" at the top of Government's Exhibit One. Ms. Keck testified that she had only recently started working at the Claiborne County Clerk's Office, so she was not certain, but based upon her experience, she thought the notation stood for Minute Book 49, Page 236. Ms. Keck stated that Patricia handled the Minute Books before Ms. Keck started, but that Ms. Keck did not really know her. Ms. Keck said that she believed that the notation indicated that the order marked as Government's Exhibit One had, at one time, been entered into the minute books. However, Ms. Keck also said that she could not be certain, since she was not working in the Clerk's Office at that time.
On redirect examination, Ms. Keck testified that, based on the minute books, she could not tell what happened in case number 9768 after 1987.*fn2 On recross examination, Ms. Keck testified that she did not bring the actual minute books, only certified copies of the pages. Ms. Keck was asked to look through her files to see if she had brought a copy of Minute Book 49 Page 236. At first Ms. Keck indicated that she did not have a copy of Minute Book 49 Page 236, but she later seemed to locate that page within her files. Ms. Keck testified that there were lines marked through some of the entries, that the entries were not in alphabetical order, and that the entries all started with the letter "B."*fn3 Ms. Keck said that she was unaware of any minute book entry for the 1998 expungement order.
B. Testimony of Holly Jaynes
Defendant next called Holly Jaynes, the Circuit Court Clerk for Hawkins County, Tennessee. Ms. Jaynes testified that she was responsible for Hawkins County Sessions Court, civil and criminal, Circuit Court, civil and criminal, Juvenile Court, civil and criminal, and Child Support Court. Ms. Jaynes stated that she had been subpoenaed and had brought copies of the records Defendant had requested. A copy of the subpoena was entered into evidence as Defendant's Exhibit Three to serve as an index of the records Ms. Jaynes had brought, while the records were entered as Defendant's Exhibit Four.
Ms. Jaynes next testified that there were no minute entries in the Hawkin's County Clerk's Office for a conviction of Defendant. Ms. Jaynes also testified that there were no records relating to Defendant for the period of February 27, 2004, through December 15, 2006, nor were there any records of Lee Asbury appearing on Defendant's behalf for that same period. Ms. Jaynes stated that there was no record that Defendant had appeared on the docket in one of the Hawkins County courts.
Ms. Jaynes testified that, prior to being elected Clerk in 1994, she had worked as chief office administrator for Heiskell Winstead, who was then the district attorney general for that judicial district. Ms. Jaynes stated that one of her responsibilities as chief office administrator was going to court, and that she did not remember ever seeing Lee Asbury appear in Hawkins County Criminal Court.
Ms. Jaynes then testified that when she receives an expungement order, the expungement order is not entered into the minutes, rather, all the minutes and files related to that case number are destroyed. Ms. Jaynes stated that she had never been asked to reconstitute the file and minute entries for an expunged case, nor was she sure how such a process could be accomplished. Ms. Jaynes testified that, based upon her experience, when a person enters a guilty plea, there are a number of different documents and waivers that must be filed, including, but not limited to, a waiver of arraignment and a plea agreement. Ms. Jaynes further testified that if those documents are signed by a judge, then a minute entry would also need to be made. Ms. Jaynes testified that if an attorney approached her with an order which had not been entered into the court's minutes, she would not be sure what to do.
On cross examination, Ms. Jaynes testified that she had been the Clerk for approximately thirteen years. Ms. Jaynes stated that, during her tenure as Clerk, she was unaware of an actual conviction ever having been expunged. Ms. Jaynes testified that she did not know whether such an expungement would be appropriate or not, but that if a judge signed it, she would enter it.
C. Testimony of Joy McCroskey
Defendant next called Joy McCroskey, the Senior Administrative Assistant to the Criminal Court Clerk for the Sixth Judicial District. Ms. McCroskey testified that she has worked in the Knox County Criminal Court Clerk's Office for approximately forty years, and that one of her job responsibilities includes supervising expungements. Ms. McCroskey stated that when she receives an expungement order, that she enters the order into the minutes, verifies that all of the entries and files related to the expunged case numbers are properly deleted, and removes the minute entry for the expungement order. Ms. McCroskey indicated that she has previously testified as to the duties of a clerk pursuant to Tennessee law and procedure, has lectured and presented educational and professional presentations, and also trains new hires.
Ms. McCroskey further testified that when a case is expunged, all public records are destroyed, except in cases of a judicial diversion. Ms. McCroskey testified that in the case of a judicial diversion, the records are not destroyed until after the diversion period. Ms. McCroskey stated that, if a case had not been expunged, you could find records of it decades later, but that once a case is expunged, you would not be able to locate records for that case.
Ms. McCroskey testified that, in Knox County, minutes are kept in a minute book and that each judge's courtroom clerk is responsible for keeping the minute books and making sure they are signed by the judge. Ms. McCroskey indicated that, based upon her experience and training, a court speaks through its minutes. Ms. McCroskey stated that she would not know how to go about reconstituting a case file after it had been expunged, because all of the documents would have been destroyed. Ms. McCroskey testified that the affidavit she had provided in the instant case was true and accurate.
On cross examination, Ms. McCroskey testified that it is her job to follow court orders, not to decide whether those orders are correct. Ms. McCroskey stated that in all of her years of experience, she had never seen a criminal conviction be expunged. Ms. McCroskey testified that when she provided her affidavit, she did not know that the expungement in question involved a felony conviction, and that if she had know that, it probably would have affected her affidavit. Ms. McCroskey indicated that she did not believe it was legal to expunge a felony conviction. Ms. McCroskey testified that if she were to receive an order expunging a felony conviction, she might talk to the judge, but would have to follow the order if the judge insisted. Ms. McCroskey testified that she would have a professional and ethical problem following such an order, though.
D. Testimony of Jody Smith
The Defendant next called Jody Smith, paralegal to James A. H. Bell. Ms. Smith indicated that, before working with Mr. Bell, she had worked at the Claiborne County Circuit Court Clerk's Office and had also worked with a different attorney. Ms. Smith testified that she had completed a page by page search of the minute books in the Claiborne County Circuit Court Clerk's Office in order to locate minute entries related to Defendant. Ms. Smith testified that Defendant's name was not located in the index for Book 49,*fn4 and that the only minute entry she could locate was an entry related to a continuance in case number 9768. Ms. Smith was unable to locate a judgment of conviction for Defendant in the minute books of both Claiborne and Hawkins County.
On cross examination, Ms. Smith testified that some of the pages of Book 49 were missing. Ms. Smith testified that she could not recall if page 239 [sic] of Book 49 was missing. On redirect examination, Ms. Smith testified that page 352 of Book 49 contained an order of continuance in case number 9768, and that was the only page in Book 49 containing a minute entry relating to Defendant. On recross examination, Ms. Smith testified that she could not recall which books had pages missing, and that she could not tell which pages might have once contained entries relating to Defendant because the page numbers in the index had also been blacked out. Ms. Smith testified that, prior to working with Mr. Bell, she had worked with an attorney by the name of Mr. Stone. Ms. Smith testified that the Mr. Stone she had worked with was not the same Mr. Stone representing the government in the instant case.
E. Testimony of Patricia Brooks
The government then called Patricia Books. Ms. Brooks testified that she currently worked at the New Tazewell Wal-Mart, but had previously worked for the Claiborne County Circuit Court Clerk. Ms. Brooks indicated that she had worked in the Clerk's Office for approximately twenty years, but that her employment was terminated on October 31, 2006. Ms. Brooks testified that she was told that her employment with the Clerk's Office was being terminated for professional and personal reasons, but was unaware of any other details.
Ms. Brooks testified that she knew Defendant as a friend. When asked if she had a romantic relationship with Defendant, Ms. Brooks stated that she had a friendship relationship with Defendant. Ms. Brooks testified that she did not live with Defendant. Ms. Brooks testified that she sometimes stayed at Defendant's house, since he was not there, but that she did not live there. When asked if she were Defendant's girlfriend, Ms. Brooks testified that she was Defendant's friend, and had been his friend for a number of years. Ms. Brooks testified that, at times, she had slept in the same room and in the same bed as Defendant.
Ms. Brooks testified that her former title at the Clerk's Office was Deputy Clerk, and that her duties included answering the phone, filing papers, and filing both civil and criminal cases. Ms. Brooks stated that she had been Judge Sexton's clerk, so she attended court with Judge Sexton and kept the minute books for Judge Sexton. Ms. Brooks testified that she did not keep the minute books in 1987, and did not meet Defendant until 1988.
Ms. Brooks testified that in 1998 her duties included handling criminal court and that she did work with the minute books, including handling expungements. Ms. Brooks did not recall handling Defendant's 1998 expungement order. Ms. Brooks testified that she had seen the order, and that the order was signed by Judge Asbury and possibly by then District Attorney James [sic] Sexton.*fn5 Ms. Brooks indicated that she could not remember if she had handed that order to then District Attorney Sexton to be signed. Ms. Brooks testified that she was friends with Defendant in 1998, that she probably had handled some minute entries related to Defendant, but that she specifically remembered that she had not expunged, redacted, or removed any of Defendant's records or minute entries.
Ms. Brooks was next asked to look at Government's Exhibit One, which Ms. Brooks identified as a judgment of conviction in Defendant's case number 9768. Ms. Brooks testified that the order included a hand written notation in the top right corner and that it appeared to say either MB-44 P-236 or MB-49 P-236. Ms. Brooks said that she had not made the notation. Ms. Brooks stated that when she had been trained to perform her former job as a deputy clerk, she was taught to make such a notation on orders to indicate on what minute book and what page an order was entered.
On cross examination, Ms. Brooks testified that she had been working at the Clerk's Office in June, 2004, and probably worked most of the days during that month. Ms. Brooks testified that she had checked her time sheet, though, and had not worked on June 14, 2004, nor had she worked on June 15, 2004. The time sheet was then entered into evidence as Defendant's Exhibit Five. Defendant then moved into evidence as Defendant's Exhibit Six documents relating to an expungement, and later "un-expungement," in an unrelated case, number 10062, State of Tennessee v. Charles Wayne Poore. Ms. Brooks testified that she thought that the minutes for the Poore case had been reconstituted, but she was not certain.
On redirect examination, Ms. Brooks testified that, in 2004, she had been aware of the Poore expungement. Ms. Brooks stated that the Poore expungement involved a felony conviction, and that it had been expunged. Ms. Brooks indicated that she did not recall speaking to Judge Sexton about the Poore expungement.
F. Testimony of Billy Ray Cheek
The government next called Billy Ray Cheek, the Circuit Court Clerk of Claiborne County. Mr. Cheek testified that he had been the Clerk for thirteen and a half years. Mr. Cheek stated that his responsibilities, in general, included keeping the records and minutes for civil and criminal sessions court, civil and criminal circuit court, and civil and criminal juvenile court in Claiborne County. Mr. Cheek stated he had worked in the Clerk's Office before being elected Clerk, and that Ms. Brooks began working in the Clerk's Office prior to Mr. Cheek's having been elected. Mr. Cheek testified that Ms. Brooks handled the Claiborne County Circuit Court, and that her duties included, among other things, handling minute book entries. Mr. Cheek stated that Ms. Brooks had sole responsibility for handling the Circuit Court minute books.
Mr. Cheek testified that he was aware of Defendant's case number 9768, but that it had occurred prior to Mr. Cheek's tenure as Clerk. Mr. Cheek testified that he was aware of that case because the Clerk's Office had to reconstitute the file after it had been expunged. Mr. Cheek said that there had also been an expungement of another person's felony conviction, possibly a Mr. Green, but Mr. Cheek was not certain. Mr. Cheek indicated that Defendant's record in case number 9768 was destroyed and the minute entries had been blacked out. Mr. Cheek testified that he believed Ms. Brooks had handled the expungement in case number 9768, because it was her responsibility and because Mr. Cheek was not aware of anyone else who would have done it.
Mr. Cheek then testified that in 2004, the file in case number 9768 was reconstituted from copies of documents provided by Mr. John Galloway, an assistant district attorney in the eighth judicial district. Mr. Cheek said that, after receiving the documents from Mr. Galloway, he directed Ms. Brooks to do everything that needed to be done to reconstitute the file in case number 9768, including making the appropriate entries in the minute books. Mr. Cheek testified that Ms. Brooks apparently did not follow his directions, because the minute entries had not been made. Mr. Cheek indicated that Ms. Brooks was no longer employed in his office because of an article that appeared in the Knoxville News-Sentinel. Mr. Cheek stated that the article covered an interview Judge Sexton had given to a News-Sentinel reporter. Mr. Cheek testified that, according to the article, Ms. Brooks had misled Judge Sexton into signing an expungement order that should never have been signed. Mr. Cheek stated that Ms. Brooks resigned. Mr. Cheek indicated that he had asked Ms. Brooks to resign and that he had explained the reasons for his decision, the same reasons he had testified to in the instant hearing. Mr. Cheek testified that he did not know whether a copy of the judgment of conviction was currently in Defendant's file for case number 9768, but that a copy was in the file at one point.
On cross examination, Mr. Cheek testified that the judgment of conviction still had not been entered into the minutes and that the minute books would not evidence that Defendant had been convicted of a crime. Mr. Cheek agreed that a court speaks through its minutes, and that he is required to destroy all records in a case when that case is expunged. Mr. Cheek testified that the record in case number 9768 was reconstituted from the documents provided by Assistant District Attorney General John Galloway, even though Mr. Galloway was not involved in the original prosecution of case number 9768. Mr. Cheek testified that it was his understanding that the district attorney's office had kept the records. Mr. Cheek stated that he did not ask anyone else for records, nor did he perform an independent search for records, but that all of the records came from Mr. Galloway.
Mr. Cheek was then shown a certified copy of the 1998 expungement order. Mr. Cheek testified that the order appeared to be signed by Judge Asbury and by then Assistant District Attorney General Shayne Sexton. Mr. Cheek also testified that it appeared that one of the docket numbers to be expunged had been changed, specifically, that in case number 9768, the eight appeared to have been changed. Mr. Cheek indicated that the change was more obvious on the original of the document, but he did not know where the original copy was.
Mr. Cheek was then shown a copy of an expungement order, signed by Judge Sexton and dated September 8, 2000, which expunged the record of a Mr. Poore, who was represented by Mr. Estep, in case number 10062. Mr. Cheek indicated that cases are filed sequentially, so an older case would have a smaller case number. Mr. Cheek testified that he believed the 2004 unexpungement order would have been entered on April 14, 2004, but the government conceded that the order was actually entered either June 14, 2004, or June 15, 2004, and that Mr. Cheek was perhaps just confused on the date.*fn6
On redirect examination, Mr. Cheek testified that he did not remember the timing of the two cases that were expunged, just that he remembered there was a problem because two felony conviction cases had been expunged. Mr. Cheek remembered that Mr. Estep was the attorney in the second case.
The parties then stipulated that Minute Book 49, Page 236 was physically missing from the minute book. The government offered Government's Collective Exhibit Three in support of this stipulation. The government then offered into evidence Government's Exhibit Four, a certified copy of the judgment of conviction in case number 9768, the copy having been certified on September 28, 2006.
G. Testimony of Wade Moore
The government then called Wade Moore, an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). Mr. Moore testified that he is the ATF case agent in the case against Defendant. Mr. Moore stated that he had just returned from the Claiborne County Circuit Court Clerk's Office to retrieve a copy of documents from Minute Book 49 entered in Government's Collective Exhibit Three. Mr. Moore testified that, after inspecting the actual minute book with Ms. Keck, that he and Ms. Keck had been able to make out a pen impression on the page of the number 9768 under the blacked out entry in the B index of Minute Book 49.
II. Amended Motion to Dismiss
In his amended motion to dismiss, Defendant contends that the indictment in this case fails to state an offense and fails to invoke the Court's jurisdiction. Defendant contends that, under Tennessee law, he is not a convicted felon, and therefore the indictment in this matter should be dismissed as a matter of law. Defendant also contends that Tennessee courts only speak through their minutes, and, in the absence of a minute entry for a judgment of conviction, Defendant cannot be a convicted felon. The government opposes Defendant's motion, arguing that the indictment is valid and that the expungement in question was void ab initio.
Motions to dismiss are governed by Rule 12 of the Federal Rules of Criminal Procedure, which permits pretrial consideration of any defense "the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b)(2). Generally, a defense can be determined before trial if it involves questions of law instead of questions of fact on the merits of criminal liability. United States v. Craft, 105 F.3d 1123, 1126 (6th Cir. 1997). Accordingly, the defense may use a Rule 12(b) motion to raise for consideration such matters as "former jeopardy, former conviction, former acquittal, statute of limitations, immunity [and] lack of jurisdiction." Id. (quoting United States v. Smith, 866 F.2d 1092, 1096 n.3 (9th Cir. 1989)). In considering such motions, a trial court may "ordinarily make preliminary findings of fact necessary to decide questions of law presented by pretrial motions so long as the trial court's conclusions do not invade the province of the ultimate factfinder." Craft, 105 F.3d at 1126.
An indictment valid on its face may not be dismissed on the ground it is based on inadequate or insufficient evidence. United States v. Williams, 504 U.S. 36, 54 (1992). Hence, a court cannot consider a factual challenge to an indictment purporting to show a defect consisting solely of insufficient evidence to prove a particular charge. Where a defendant's pretrial motion to dismiss requires the court to find facts that make up the elements of the case, a determination which would normally be reserved to the jury at trial, the motion to dismiss should be denied:
Rule 12(b)(1) of the Federal Rules of Criminal Procedure, which cautions the trial judge that he may consider on a motion to dismiss the indictment only those objections that are "capable of determination without the trial of the general issue," indicates that evidentiary questions of this type should not be determined on such a motion.
United States v. Knox, 396 U.S. 77, 83 n. 7 (1969). In essence, a motion to dismiss should be denied if it requires a pretrial test of the government's evidence:
Rule 12(b)(1) permits the raising by motion of defenses or objections only where they are "capable of determination without the trial of the general issue," the general issue being the issue presented by the allegations of the indictment and the plea. Allegations of the indictment essential to prove the offense charged and the pleas in answer to such allegations require a trial of the general issue. Here, the issue presented by the defense or objections raised by appellants in their motions is that the allegations of the indictment are false and untrue. This is the general issue, and this issue could only be determined on the trial. Appellants, therefore, under Rule 12, can not present such a defense or raise such an objection by a motion to dismiss the indictment.
Universal Milk Bottle Serv. v. United States, 188 F.2d 959, 962 (6th Cir. 1951), see also United States v. Short, 671 F.2d 178, 181-82 (6th Cir. 1982).
In resolving Defendant's motion to dismiss, the Court notes that Defendant has raised a number of interrelated sub-issues. However, the two major issues of law before the Court are the validity of the 1998 expungement and the determination of what legal effect the absence of minute entries for the judgment of conviction in case number 9768 has in the instant case. Once these two questions of law are resolved, all related issues are equally answered.
A. The 1998 Expungement Order
The government contends that Defendant is a convicted felon, and offers a certified copy of a 1987 judgment of conviction in case number 9768, Government's Exhibit One, in support of its claim. Defendant contends that he is not a convicted felon, and offers in support of his claim a certified copy of an order of expungement, part of Defendant's Collective Exhibit One, that purportedly expunged six cases, including case number 9768. The existence of the 1987 felony conviction in case number 9768 is an essential element of the government's case against Defendant and, as such, the Court leaves that issue for the eventual consideration of a jury. However, before this case can reach a jury, the Court must determine as a matter of law whether case number 9768 was expunged. Therefore the Court will address the validity of the 1998 expungement while leaving the underlying conviction for a jury's consideration.
Defendant is currently charged with being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). The state law in the jurisdiction where the crime occurred determines if the conviction falls under 18 U.S.C. § 922(g)(1).
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
18 U.S.C. 921(a)(20). The Sixth Circuit has held that if a state has restored civil rights to a felon, without expressly limiting the felon's firearm privileges, then the felon is not subject to federal firearms disabilities. United States v. Cassidy, 899 F.2d 543, 546 (6th Cir. 1990). However, if there is any abrogation or limitation at all of a convicted person's rights with respect to his ability to possess or carry firearms, then federal law does apply, and the convicted person may not possess any firearms whether his rights have been restored by the state or not. Caron v. United States, 524 U.S. 308 (1998). A court must look to the whole of state law to determine whether a convicted felon's firearms privileges have been expressly restricted. Cassidy, 899 F.2d at 546. Accordingly, if Defendant's only felony conviction has been properly expunged, then Defendant would not be subject to 18 U.S.C. § 922(g)(1).
Tennessee's expungement statute provides, in pertinent part, that
[a]ll public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if: (I) [t]he charge has been dismissed; (ii) [a] no true bill was returned by a grand jury; (iii) [a] verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or (iv) [t]he person was arrested and released without being charged.
Tenn. Code Ann. § 40-32-101(a)(1)(A). The law further provides that "[a] person shall not be entitled to the expunction of such person's records in a particular case if the person is convicted of any offense or charge, including a lesser included offense or charge." Id. at (a)(1)(E).
Defendant contends that the use of the word "entitled" implies that, even though an individual might not be guaranteed an expungement, that a court may, at its discretion, expunge a felony conviction. However, the Tennessee Supreme Court disagrees with Defendant's position. In State v. Jennings, 130 S.W.3d 43, 47 (Tenn. 2004), the Tennessee Supreme Court, citing a lower court with approval, held that the Court is of the opinion that the legislature was specific in drafting [the expungement] statute and setting forth the precise dispositions for which expungement would be available.
Granting an expungement [in a case that does not fall within the statute] would be a violation of the separation of powers by enlarging the scope of the statute beyond the clear and ordinary language contained therein.
Id. In addition, the Tennessee Court of Criminal Appeals has held that "the legislature's exclusion of the trial court's discretion as a basis upon which to grant expungement, results in a finding that the trial court has no such discretion." State v. Blanchard, 100 S.W.3d 226, 229 (Tenn. Crim. App. 2002). Accordingly, as a matter of law, the Court finds that an expungement is allowed under Tennessee law only when: (1) the charge has been dismissed; (2) a no true bill was returned by a grand jury; (3) a verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or (4) the person was arrested and released without being charged. Consequently, there is no such thing as a discretionary expungement in Tennessee.
Accordingly, if the 1998 expungement of case number 9768 occurred in the absence of one of the four statutory pre-requisites, then the court issuing the expungement acted outside its jurisdiction. A court may not act outside its jurisdiction, and any actions outside of a court's jurisdiction are void and of no legal effect. See Gentry v. Gentry, 924 S.W.2d 678, (Tenn. 1996) ("[a] decree is absolutely void if it appears on the face of the record itself . . . that the court had no general jurisdiction of the subject matter"); New York Casualty Co. v. Lawson, 24 S.W.2d 881, 883 (Tenn. 1929) ("[a] void judgment is one which shows upon the face of the record a want of jurisdiction in the court assuming to render the judgment, which want of jurisdiction may be either of the person, or of the subject-matter generally, or of the particular question attempted to be decided or the relief assumed to be given" ); Churchwell v. Callens, 36 Tenn. App. 119, 131 (Tenn. Ct. App. 1952) (holding that a void judgment binds no one).
After a review of the facts presented to this Court on the expungement issue, the Court finds that the court issuing the 1998 expungement acted outside its jurisdiction and that the expungement was void and of no legal effect as to case number 9768. The evidence of record shows that Defendant pled guilty to a felony in case number 9768 and was sentenced to probation.*fn7 In addition, during the February 26, 2007, evidentiary hearing before Judge Shirley, Defendant's counsel represented to the Court that a probation officer had indicated that Defendant did serve his period of probation in case number 9768. Given that Defendant entered a guilty plea and was sentenced to, and served, probation, it is clear that the second, third, and fourth pre-requisites to an expungement were not satisfied.
As far as the first factor, there is simply no evidence of record, nor even a proffer of evidence, to support the contention that the charges against Defendant in case number 9768 were dismissed. Instead, all of the evidence shows that Defendant entered a guilty plea and served his period of probation. Accordingly, the Court finds that Defendant did not satisfy one of the four prerequisites for an expungement, therefore the 1998 expungement order in case number 9768 was void and of no legal effect. As a matter of law, case number 9768 was never legally expunged.
The Court notes that the Tennessee Court of Criminal Appeals has held that, in the face of an erroneous expungement, it was correct for a court to amend the erroneous order within thirty days. Sneed v. State, No. 01C01-9803-CC-00117, 1999 Tenn. Crim. App. LEXIS 462, at *5 (Tenn. Crim. App. May 12, 1999). However, given that the lower court in Sneed had corrected its error prior to appeal, the Sneed court had no need to address the question of whether the erroneous expungement was void. Given Tennessee jurisprudence on the results of a court acting outside of its jurisdiction, and given Tennessee jurisprudence on when an expungement may be granted, it is clear that an erroneous expungement is void, and the Court finds no discrepancy between the current ruling and Sneed.
As an alternative ground for the Court's ruling, the Court finds the testimony of Mr. Cheek enlightening as to the circumstances behind the expungement of case number 9768. Mr. Cheek testified that it appeared that the expungement order had been altered, i.e., that the eight in case number 9768 had been changed. After examining the expungement order [Defendant's Collective Exhibit One], the Court agrees that it appears that the eight in case number 9768 has been changed, and that it appears that case number 9768 was originally case number 9769. The Court notes that case number 9769 [Doc. 100, Attachment 5] involved a "no true bill" against Defendant, and thus was eligible for expungement. Accordingly, to extent that the expungement order was altered by a third party,*fn8 the Court again finds that the expungement order was void and of no legal effect as to case number 9768.
In light of the Court's ruling, the Court need not address Defendant's arguments regarding the 2004 unexpungement order. Given that the 1998 order had no legal effect as to case number 9768, Defendant never legally had his rights ...